National Security Trumps Union Rights
FedSmith recently summarized a district court decision in National Security and Federal Employee Unions: The Battle to Restrict Unions Continues. In that initial decision, a State Department union challenged the Executive Order restricting union involvement in the State Department and the U.S. Agency for International Development. The decision upheld an injunction against implementing the Order.
The District Court judge upheld an injunction against implementing the Executive Order. The judge concluded that it was likely the union’s arguments would be successful and that not allowing the injunction would cause irreparable harm to the union.
Unions and other interested parties have had some success in reversing actions by President Trump in restricting union involvement in government or in changing how the federal civil service system functions by following various rules and procedures.
The reality is that “forum shopping” allows a party to file a case in a district court where the party filing the lawsuit envisions a greater chance of success. Several recent federal decisions have resulted in cases from courts in Northern California, Massachusetts, Maryland, and the District of Columbia.
While the initial decision is important, the euphoria of winning may not last through subsequent judicial review. District court decisions vary and may be contradictory. This has happened with all the changes that have taken place affecting the federal workforce. The confusion resulting from the multiplicity of decisions from district courts must ultimately be resolved within the judicial system, including those from the US Supreme Court.
Court of Appeals Decision
In this specific case, the federal appeals court in the District of Columbia has given temporary approval for President Trump to strip collective bargaining rights from employees at the State Department and the Agency for International Development. The three-judge panel concluded that relevant law grants the president considerable latitude to make decisions on this topic.
The latest decision means that, while the appeal is pending, the preliminary injunction from the district court is not in effect. This means the President’s Executive Order can be enforced for now, pending further review by the appellate court.
The appellate court’s decision is a setback for the American Foreign Service Association and Foreign Service employees, as it allows the administration’s restrictions on union representation to proceed. However, the legal challenge is ongoing, so the decision is not final. The final outcome may depend on the appellate court’s full review of the merits of the case.
Rationale for the Decision
The reasoning behind the latest decision is likely to be important in any final decision that may be issued.
The Court noted that the Foreign Service is the workforce through which the United States conducts its foreign affairs. “And foreign affairs are critical to national security. So the Government is likely correct that the Executive Order is consistent with the Foreign Service Act’s delegation of national-security determinations to the President.”
The court noted the president is given broad authority to exclude parts of the Foreign Service from the relevant labor relations statute in the interest of national security and that these “determinations are consistent with the President’s role as commander-in-chief.”
Even assuming this case is justiciable, our review must be exceedingly deferential. When a statutory delegation invokes the President’s discretion in exercising core Article II responsibilities, there is little for a court to review.
[W]e assume without deciding that a form of review is appropriate here and conclude that the Executive Order likely withstands the Association’s “attacks on [its] sufficiency. (footnote deleted) “The conduct of diplomatic negotiations, the everyday contact between our State Department officers and foreign nationals, the reports Foreign Service officers in the field submit to Washington, and the planning activities they carry out all have a vital impact on maintenance of our national security.
Summary
It is likely that this case and others on the same Executive Order will be reviewed in other courts. This latest decision outlines the argument that other courts may find persuasive. Courts may be hesitant to decide issues of national security by ruling in favor of the impact on federal employee unions over presidential discretion on national security issues.
For the reasons outlined by the Court of Appeals, this case may be seen as a national security issue rather than a labor relations issue. If that is the case, labor relations and union rights may take a back seat to national security. Other cases may be viewed as having less of an impact on national security than the Foreign Service, and this difference may affect other cases likely to be issued under this specific Executive Order.
The federal community may have to wait a few more months before a final resolution is announced in this case.
